Momentum Building For The Supreme Court’s Next Abortion Case

Abortion will be on the docket as the U.S. Supreme Court begins its term this week. With states continuing to enact innovative, life-affirming legislation, the Court will be asked to clarify the scope of the states’ authority to protect maternal health, while simultaneously confronting the dangerous, profit-driven practices of the abortion industry.

First up for the Court will be an Arizona law, based on model legislation from Americans United for Life, requiring that the abortion-drug RU-486 be administered in accordance with the FDA-approved protocol. Notably, even when administered properly, RU-486 has a troubling safety record.

For example, the FDA has reported that, in the decade after its September 2000 approval, RU-486 precipitated 2,207 “adverse events” including 14 deaths, 612 hospitalizations, and 339 blood transfusions. Of the 14 deaths, eight followed administrations that violated the FDA protocol.

The significant health risks associated with RU-486 are exacerbated by the abortion industry’s admitted and widespread defiance of FDA restrictions prescribing the precise dosage and timing of the two-drug, multi-day regimen and limiting how far into pregnancy the drugs may be used. Acknowledging the maternal health risks posed by this “off-label” use of RU-486, the Fifth and Sixth Circuit have upheld Texas and Ohio laws restricting its administration.

However, the Ninth Circuit has blocked enforcement of Arizona’s law, ignoring a detailed legislative record providing the medical justifications for it. Instead, the appellate court created a new standard of review for abortion laws, one that improperly discounts the state’s interest in protecting maternal health and directly contravenes the “undue burden” standard adopted by the Supreme Court more than 20 years ago.

Hospital admitting privileges requirements for abortionists will provide a second opportunity for the justices to build on the protective legacy of their 2007 decision upholding the federal ban on partial-birth abortion and opening the door to regulations and standards for abortion that make good medical sense.

Seventeen states have enacted laws requiring abortionists to maintain hospital admitting privileges or a patient transfer agreement with a physician who has such privileges.

Admitting privileges requirements protect women’s health and counter the abortion industry’s penchant for employing “circuit rider” abortionists who travel in from out-of-state, spend the day performing abortions, and then leave, abandoning women to deal with frequent complications on their own.

As the Fifth Circuit noted in upholding Texas’ admitting privileges law, the benefits supporting such a requirement include providing a more thorough evaluation of physician competency, ensuring continuity of care, optimizing complication management, and preventing patient abandonment.

Callously dismissing the obvious patient benefits conferred by these requirements, the abortion industry has challenged admitting privileges laws in Alabama, Louisiana, Mississippi, Texas, and Wisconsin. While Texas’s requirement has been upheld, admitting privileges laws in Alabama and Mississippi have been invalidated. In each case, the court adopted a controversial and novel approach in order to side with the abortion industry.